Originally published at Charles Koch Institute | April 12, 2016
According to attorney Harvey Silverglate, the average American inadvertently commits three arguable felonies in a given day. How is possible that Americans could commit so many felonies without knowing it?
Consider this: The U.S. Code—the consolidation of our country’s laws and regulations, broken down into sections such as agriculture (Title 7), banking (Title 11), public lands (Title 43), and more—contains over 4,500 federal crimes and more than 300,000 federal regulations that carry criminal penalties. Rather than being organized together, those crimes and regulations are scattered throughout the code’s 54 titles. Additionally, the states have their own criminal statutes and regulations that carry criminal penalties.
Many of these statutes and regulations criminalize ordinary activities that would not have historically been considered criminal, like shipping lobsters in the wrong packaging or collecting arrowheads from your campground.
While ignorance of the law has never been a sound defense, the sheer number of laws currently on the books—and the fact that crimes are poorly defined and scattered throughout the code—makes it unreasonable to expect the average citizen to be aware of all the activities that could be considered criminal.
Even more troubling is the growing number of statutes and regulations that do not require the government to prove criminal intent in order to obtain a conviction. Historically, a crime consisted of both a guilty act (actus reus) and a guilty state of mind (mens rea). But the absence of an intent requirement enables the criminal prosecution of people who have committed acts that are not commonly considered criminal without the necessary level of intent.
Overcriminalization and prosecution without proof of criminal intent erode the rule of law that protects individual liberties and makes the United States an example to many other nations.
New Mexico has distinguished itself as a leader on criminal justice reform by revising its civil asset forfeiture practices. But there is more work to be done. Examining New Mexico’s approach to criminal intent could further the state’s reform efforts by increasing the effectiveness and justness of its criminal justice system.